mocek.org

Yesterday evening, I answered a buzz at my building’s gate to find that someone from CenturyLink, a telecommunications company formerly known as Qwest, as U.S. West before that, and probably as Bell or AT&T before that, was there to tell me about work they’d been doing in my neighborhood. She said they now offer Internet service here, and that she thought that previous options included only the cable company, Comcast.

Though I didn’t mention it, I have had a CenturyLink DSL connection at this address (with independent ISP Telebyte NW) since before they were known as CenturyLink. I told her that last I checked, their higher-speed service imposed a monthly transfer cap of about 46 hours of transfer at full speed (that’s 250 GB at 12 Mbps or so). She said she was unaware of any such cap.

Today, I went to CenturyLink’s site with hopes of finding better options than I found last I checked, a few months ago. Once again, their site was nearly useless, providing little more than teasers filled with wiggle words. So I started a “live chat” on the Web with a sales representative. I learned that the “up to 1 Gbps” service they offer for $80 per month, bundled with plain-old telephone service, is capped at 250 GB per month. At one gigabit per second, it takes 2,000 seconds, or a bit over a half-hour, to transfer 250 gigabytes of data.

Following is a transcript of our conversation (UPDATE: previous transcripts follow):

Last October, suspecting that multiple City of Seattle departments were flouting a law passed in 2013 that restricts their acquisition and use of surveillance equipment, I requested public records that would exist had those departments complied. Processing of my request was unsatisfactory (possibly unlawful), so I requested and received the administrative tracking file for that request. E-mail messages in that file reveal that rather than simply searching for and providing responsive records, staff at Seattle Legislative Department deferred to Seattle Police Department (SPD) staff on whether to withhold from the public some records which were communicated to City Council by SPD. These messages also show that processing of my and other people’s requests was coordinated by staff at the City Attorney’s Office “[i]n order to ensure that the Mayor’s Office, SPD, and the Law Department provide consistent responses to the requests.”

In March of 2013, after learning that SPD had misled them and avoided oversight by using federal “port security” grant money to purchase equipment the department used to erect a surveillance network that stretched well beyond view of the Port of Seattle and waterways leading to it, Seattle City Council passed a bill that required all city departments to request and receive permission from City Council prior to any acquisition of a variety of surveillance equipment, as well as to receive approval of proposed protocol for use of that equipment. Departments that had previously acquired such equipment were required to submit the same protocol information within 30 days of passage of the bill.

More than five months after these protocols were due by law to have been provided to City Council, I had heard nothing indicating that any such protocols had, in fact, been provided. So, in early October, I filed with City Council a request for any such records:

Pursuant to RCW Ch. 42.56 (Public Records Act), I hereby request the following records:

Surveillance equipment operational protocols and surveillance equipment data management protocols provided to City Council since enactment of Seattle ordinance number 124142, including all draft and final versions received.

Processing of my request dragged on for months. A records clerk for the Legislative Department provided a final response on February 26, 2014, more than 20 weeks after I requested the records. In the end, multiple responsive records were identified, but I was granted access to only one of them. The others were withheld in full, with the exemption log citing RCW 42.56.280 as the reason for withholding two computer files, “Word Document titled: 20130508 Wireless Mesh Camera Policy DRAFT 9” from Greg Doss at SPD, and “Word Document: titled 20130613 Wireless Mesh Camera Policy (to CM Harrell)” from SPD Chief Jim Pugel.

This exemption to the Washington Public Records Act applies to certain deliberative records, as described by Reporters Committee for Freedom of the Press:

i. Deliberative Process. This exemption allows nondisclosure of intra-agency deliberative materials. RCW 42.56.280. Inter-agency materials are not exempt. Columbian Publishing Co. v. City of Vancouver, 36 Wn. App. 25, 671 P.2d 280 (1983). The exemption applies to opinions, such as faculty tenure evaluations, Hafermehl v. University of Wash., 29 Wn. App. 366, 628 P.2d 846 (1981), but does not include purely factual matters, Hearst Corp. v. Hoppe, 90 Wn.2d 123, 580 P.2d 246 (1978), or the raw data on which a decision is based. PAWS, 125 Wn.2d at 256. Deliberative materials are exempt only until the policies or recommendations contained in such records are implemented. Dawson v. Daly, 120 Wn.2d 782, 793, 845 P.2d 995 (1993).

The records withheld from me were apparently inter-agency materials provided by Seattle Police Department to Seattle City Council.

Dissatisfied with the processing of my request, baffled by the months of delay, and having received no response to multiple requests for information about that processing, on the following day, February 27, 2014, I requested the administrative tracking file for my October request:

Pursuant to RCW Ch. 42.56 (Public Records Act), I hereby request the following records:

Administrative tracking file for public records request number 2013-180 (your identifier for a request filed October 8, 2013, by me, Phil Mocek, for surveillance equipment operational and data management protocols), and all e-mail, memoranda, and records of phone calls created in the processing of that request, and related metadata.

I received records that purportedly comprise that entire tracking file in two installments: one on March 6 and another on March 13. They consisted of about 30 e-mail messages and one image of a hand-written note. The e-mail messages were helpfully provided as RFC 2822 files (as opposed to scans of printed messages, screen shot images, etc.), devoid of redaction.

For ease of processing those messages (e.g., sorting, reviewing, decoding non-ASCII portions, extracting only certain header fields, saving attachments, etc.), I imported each into Thunderbird using the ImportExportTools extension. I saved them to a plain text file, separated each message, pulled out TOFU-quoted messages that were not, themselves, provided to me, then re-sorted the whole thing.

Following are those messages, interleaved with my comments, beginning with my request of October 8, 2013. I obscured the e-mail addresses slightly and truncated some message bodies (largely to remove lengthy quotes of previously-sent messages), but left them otherwise intact. They provide a view of the length to which the Legislative Department, Police Department, and City Attorney’s Office, went in order to prevent public access to public records, particularly the two inter-agency communications from Greg Doss and from Jim Pugel that were withheld in full.

Date: Tue, 8 Oct 2013 09:17:49 -0700
From: 7025-96997557(AT)requests.muckrock.com
To: "Winkler, Jennifer" <Jennifer.Winkler(AT)seattle.gov>
CC: LEG_CouncilMembers <council(AT)seattle.gov>
Subject: Freedom of Information Request: Surveillance equipment operational
    and data management protocols

Pursuant to RCW Ch. 42.56 (Public Records Act), I hereby request the following
records:

Surveillance equipment operational protocols and surveillance equipment data
management protocols provided to City Council since enactment of Seattle
ordinance number 124142, including all draft and final versions received.

As you know, council bill 117730, passed unanimously by City Council on March
18, 2013, signed by Mayor Mike McGinn on March 26, 2013, and enacted as
ordinance number 124142, required:

    1. That each City department operating surveillance equipment prior to the
    effective date of the ordinance, for which City Council had not previously
    approved protocols by ordinance, to propose written propose written
    operational protocols consistent with SMC 14.18.20 no later than thirty
    days following the effective date of the ordinance for Council review and
    approval by ordinance

    2. That each department operating surveillance equipment prior to the
    effective date of the ordinance to adopt written data management protocols
    consistent with SMC 14.18.30 no later than thirty days following the
    effective date of this ordinance and submit these protocols to the City
    Council for review and possible approval by ordinance.

More than five months have passed since the date by which City departments were
required by law to provide City Council with the records I request.

I also request that, if appropriate, fees be waived as I believe this request
is in the public interest. The requested documents will be made available to
the general public free of charge as part of the public information service at
MuckRock.com, processed by a representative of the news media/press and is made
in the process of news gathering and not for commercial usage.

In the event that fees cannot be waived, I would be grateful if you would
inform me of the total charges in advance of fulfilling my request. I would
prefer the request filled electronically, by e-mail attachment if available or
CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look
forward to receiving your response to this request within 5 business days, as
the statute requires.

Sincerely,
Phil Mocek

I botched some of the background information included in my request (points #1 and #2, the summary of requirements of Ordinance 124142), but that did not affect my description of the records I requested.

This was a simple request. City Council made a law requiring other departments to provide to them certain records, and I requested those records from City Council five months after they were due. One would expect the records clerk to contact the sponsor of the bill to find out who was charged with managing collection of the records for which it called, then for a legislative aide at that office to pull a file folder, scan its content, and e-mail it back to the records clerk for forwarding to me. This would involve maybe 30 minutes of work, and with delays in communication, might take a week to complete.

I received a response within five business days, as the law requires. Jennifer Winkler of Seattle Legislative Department responded on behalf of City Council, reporting that various staff had “begun the process of determining whether or not [their offices held] responsive records.” She provided a date six weeks in the future by which I would receive either an installment of records I requested or a status update. She provided no explanation of how she arrived at the six-week figure.

Date: Tue, 15 Oct 2013 15:49:30 -0700
From: "Winkler, Jennifer" <Jennifer.Winkler(AT)seattle.gov>
To: 7025-96997557(AT)requests.muckrock.com
CC: "Johnson, Sharon" <Sharon.Johnson(AT)seattle.gov>
Subject: PRR2013-180 - Surveillance equipment protocols

RE:  Public Records Request No. 2013-180

Dear Mr. Mocek:

The Legislative Department, which includes the Seattle City Council, Office of
the City Clerk and Central Staff, has begun the process of determining whether
or not it holds responsive records.  Our office will contact you on or before
November 22, 2013 with an installment of responsive records or a status update
on your request.  Of course if we complete our search sooner, any responsive
records will be made available at that time.

Please feel free to contact me directly with any questions or concerns.

Sincerely,
Jennifer Winkler
On behalf of Sharon Johnson, CPRO, MPS

Nine days later, Ms. Winkler e-mailed 20 people at City of Seattle, several of whom I recognize as legislative aides to City Council members, about my request. She requested that they perform searches for records responsive to my request. Along with her request, she provided some suggestions for search strategy, directions for how to respond, and a deadline for response of November 6, a bit less than two weeks later.

Date: Thu, 24 Oct 2013 15:39:03 -0700
From: "Winkler, Jennifer" <Jennifer.Winkler(AT)seattle.gov>
To: "Nyland, Kathy" <Kathy.Nyland(AT)seattle.gov>,
    "Pulliam, Tobias" <Tobias.Pulliam(AT)seattle.gov>,
    "Brown, LaTonya" <LaTonya.Brown(AT)seattle.gov>,
    "Ko, Elaine" <Elaine.Ko(AT)seattle.gov>,
    "Bauhs, Bailey" <Bailey.Bauhs(AT)seattle.gov>,
    "Tang, Vinh" <Vinh.Tang(AT)seattle.gov>,
    "Aldrich, Newell" <Newell.Aldrich(AT)seattle.gov>,
    "Morris, Rashad" <Rashad.Morris(AT)seattle.gov>,
    "Smith, Rose" <Rose.Smith(AT)seattle.gov>,
    "Serna, Susana" <Susana.Serna(AT)seattle.gov>
CC: "Rehrmann, Lily" <Lily.Rehrmann(AT)seattle.gov>,
    "Van Duzer, Nate" <Nate.VanDuzer(AT)seattle.gov>,
    "Yeaworth, David" <David.Yeaworth(AT)seattle.gov>,
    "Shulman, Phyllis" <Phyllis.Shulman(AT)seattle.gov>,
    "Caldirola-Davis, Carlo" <Carlo.Davis(AT)seattle.gov>,
    "Samuels, Jennifer" <Jennifer.Samuels(AT)seattle.gov>,
    "Herbold, Lisa" <Lisa.Herbold(AT)seattle.gov>,
    "Fogt, Josh" <Josh.Fogt(AT)seattle.gov>,
    "Hawksford, Brian" <Brian.Hawksford(AT)seattle.gov>,
    "Noble, Ben" <Ben.Noble(AT)seattle.gov>
Subject: PRR 2013-180 - Surveillance Camera protocols

DUE DATE:  Noon November 6, 2013.
Date Range:  March 26, 2103  to October 8, 2013

Please ensure you conduct a diligent search of ALL records.  Thus, please
document the name of each file folder and or location you search, including
meeting notes and handwritten notes.  A list of search terms is included to
assist you.  Each of the listed terms must be searched.  Please note the list
is not exhaustive and you should add additional terms to follow obvious leads
as they are uncovered that is likely to turn up additional sources for the
records requested.

SEARCH TERMS: surveillance cameras, protocols, 124142

REQUEST:
    Surveillance equipment operational protocols and surveillance equipment
    data management protocols provided to City Council since enactment of
    Seattle ordinance number 124142, including all draft and final versions
    received.

Upon completion of your search and production of records, complete the attached
search form and return to me electronically.  Please appropriately mark the
locations searched and the search terms used in the fields noted, including
recording the amount of time you spent on filling this request in the field
marked "Hours Worked."

Kind regards,
Jennifer
On behalf of Sharon Johnson, CPRO, MPS

    [ATTACHED: Surveillance Camera protocols.xlsx]

This message suggests that Ms. Winkler’s report to me nine days earlier, on October 15, that a process had been initiated to determine whether or not various offices held responsive records was false. I have seen no indication, in the administrative tracking file or elsewhere, that any work toward location of responsive records was performed between filing of my request on October 8 and her e-mail to other staff on October 24.

It’s interesting that Ms. Winkler directed those who were to search for records to limit the date range of the search so that it ended on the date of my request. I would expect to receive any responsive records that existed at the time someone searched for them, even if those records were not available at the time of my request but became available between the time I filed the request and the time at which someone finally got around to searching. This seems particularly significant in a situation like this one, when the search did not start until weeks after the request was filed.

I did not receive any of the completed search forms Ms. Winkler directed other staff to return to her. Nor did I receive any index of these forms or compilation of reports of the time each respondent spent working on his or her search. I do not know if it is typical for such records to be included in an administrative file, but it seems logical that they would be.

On October 30, MuckRock sent an automatically-generated request for status update:

Date: Wed, 30 Oct 2013 02:00:57 -0700
From: 7025-96997557(AT)requests.muckrock.com
To: "Winkler, Jennifer" <Jennifer.Winkler(AT)seattle.gov>
CC: "Johnson, Sharon" <Sharon.Johnson(AT)seattle.gov>
Subject: Follow up to Freedom of Information Request #2013-180

I wanted to follow up on the following Freedom of Information request, copied
below, and originally submitted on Oct. 8, 2013. Please let me know when I can
expect to receive a response, or if further clarification is needed.  You had
assigned it reference number #2013-180.

On November 5, Ms. Winkler e-mailed an update, reporting that a search was underway and reiterating her earlier estimate of November 22 for a first installment or further update on status:

Date: Tue, 5 Nov 2013 10:14:04 -0800
From: "Winkler, Jennifer" <Jennifer.Winkler(AT)seattle.gov>
To: 7025-96997557(AT)requests.muckrock.com
CC: "Johnson, Sharon" <Sharon.Johnson(AT)seattle.gov>
Subject: RE: Follow up to Freedom of Information Request #2013-180

Mr. Mocek,

We have received and acknowledged your request, please see the attached email
for your acknowledgement letter.   We are currently searching the records of
the Legislative Department for potentially responsive documents and will
provide you with an installment of records or status update on November 22,
2013 as the attached indicates.

Jennifer

    [ATTACHED: ForwardedMessage.eml]

On November 20, an auto-generated request for status update was sent:

Date: Wed, 20 Nov 2013 02:00:13 -0800
From: 7025-96997557(AT)requests.muckrock.com
To: "Winkler, Jennifer" <Jennifer.Winkler(AT)seattle.gov>
CC: "Johnson, Sharon" <Sharon.Johnson(AT)seattle.gov>
Subject: Follow up to Freedom of Information Request #2013-180

I wanted to follow up on the following Freedom of Information request, copied
below, and originally submitted on Oct. 8, 2013. Please let me know when I can
expect to receive a response, or if further clarification is needed.  You had
assigned it reference number #2013-180.

On November 22, Ms. Winkler reported that the search for responsive records had concluded, that a review of unspecified documents had begun, and that no responsive records had yet been found. She provided a new due-date of December 6, by which I was to be contacted with either an installment of responsive records or a status update:

Date: Fri, 22 Nov 2013 13:57:44 -0800
From: "Winkler, Jennifer" <Jennifer.Winkler(AT)seattle.gov>
To: 7025-96997557(AT)requests.muckrock.com
CC: "Johnson, Sharon" <Sharon.Johnson(AT)seattle.gov>
Subject: PRR 2013-180 - Surveillance Cameras - status update

RE:  Public Records Request No. 2013-180

Dear Mr. Mocek:

In accordance with RCW 42.56.520, this e-mail is to provide you with a status
update  of your Public Records Request dated October 8, 2013 and received by
the Legislative Department same date,  whereby you request the following:

    Surveillance equipment operational protocols and surveillance equipment
    data management protocols provided to the City Council since enactment of
    Seattle ordinance number 124142, including all drafts and final versions.

The Legislative Department has concluded its search for responsive records and
has begun reviewing documents.   At this time there are no documents responsive
to your request in the document sets we have reviewed.    We continue to review
the remaining document sets for responsive documents. Our office will contact
you on or before December 6th, 2013 with an installment of responsive records
or a status update on your request.  Of course if we complete our search
sooner, any responsive records will be made available at that time.

Please feel free to contact me directly with any questions or concerns.

Jennifer Winkler
On Behalf of Sharon Johnson

I do not know how searching differs from reviewing in this context. In my mind, the search for responsive records consists almost entirely of reviewing known records.

On December 7, an auto-generated request for status update was sent:

Date: Sat, 7 Dec 2013 02:00:09 -0800
From: Phil Mocek <7025-96997557(AT)requests.muckrock.com>
To: "Winkler, Jennifer" <Jennifer.Winkler(AT)seattle.gov>
CC: "Johnson, Sharon" <Sharon.Johnson(AT)seattle.gov>
Subject: RE: Freedom of Information Request #2013-180

I wanted to follow up on the following Freedom of Information request, copied
below, and originally submitted on Oct. 8, 2013. Please let me know when I can
expect to receive a response, or if further clarification is needed.  You had
assigned it reference number #2013-180.

On December 10, more than two months since receipt of my request, Ms. Winkler reported precisely the same things she had reported on November 22 and provided a new date by which I would receive either an installment of responsive records or another status update: December 20. There was no explanation of what changed, causing the revised estimate that nearly doubled the time dedicated to this phase of processing my request.

Date: Tue, 10 Dec 2013 15:37:47 -0800
From: "Winkler, Jennifer" <Jennifer.Winkler(AT)seattle.gov>
To: 7025-96997557(AT)requests.muckrock.com
Subject: RE: PRR 2013-180 - Surveillance Cameras - status update #2

RE:  Public Records Request No. 2013-180

Dear Mr. Mocek:

In accordance with RCW 42.56.520, this e-mail is to provide you with a status
update  of your Public Records Request dated October 8, 2013 and received by
the Legislative Department same date,  whereby you request the following:

    Surveillance equipment operational protocols and surveillance equipment
    data management protocols provided to the City Council since enactment of
    Seattle ordinance number 124142, including all drafts and final versions.

The Legislative Department has concluded its search for responsive records and
has begun reviewing documents.   At this time there are no documents responsive
to your request in the document sets we have reviewed.    We continue to review
the remaining document sets for responsive documents. Our office will contact
you on or before December 20, 2013 with an installment of responsive records or
a status update on your request.  Of course if we complete our search sooner,
any responsive records will be made available at that time.

Please feel free to contact me directly with any questions or concerns.

Jennifer Winkler
On Behalf of Sharon Johnson

On December 19, 72 days since I filed my request and one day prior to the next self-imposed due date for city staff, Ms. Winkler e-mailed two Seattle Police Department records clerks, Sheila Friend-Gray and Bonnie Voegele.

Sent: Thursday, December 19, 2013 2:17 PM
From: Winkler, Jennifer
To: Friend-Gray, Sheila
Cc: Voegele, Bonnie
Subject: PDR for surveillance camera protocols

Hi Sheila,

Phil Mocek sent us a PDR for any policies or procedures provided to the Council
for compliance with Ordinance 124142 (which states that all surveillance camera
networks in the City must be reviewed by Council prior to implementation).   We
have found that SPD submitted information to the members of the Public Safety ,
Civil Rights, and Technology Committee a few months ago, which fits into the
timeframe for the request.  However, it does not appear that they have been
formerly presented to the Council as of yet.

Do you know if you received the same request?  I've attached the original
request as an FYI.  If you did get this request, what if anything did you
provide.   We've reviewed most of our document sets, but the only item we've
found is that mesh network draft and subsequent versions.

Thanks
Jennifer

Jennifer Winkler
City Records Manager
Legislative Department - Office of the City Clerk

In that e-mail, Ms. Winkler:

• Stated that most of the Legislative Department’s “document sets” had been reviewed
• Stated that the only items responsive to my request that had been found were “that mesh network draft and subsequent revisions”
• Stated that she found two records responsive to my request that had been submitted by SPD to City Council members months earlier
• Stated that the responsive records found had had not “been formerly presented to the Council,” (presumably, based on a later e-mail meaning to write “formally” where she wrote “formerly”)

Contrary to what Ms. Winkler wrote to Ms. Friend-Gray, my request was not for surveillance equipment protocols formally presented to City Council, but for draft and final versions of all such protocols communicated to City Council since ordinance 124142 took effect in late March of 2013.

So, according to Ms. Winkler, at a date no later than December 19, she and/or colleagues at the Legislative Department had located multiple records responsive to my request.

About an hour and a half later, Ms. Winkler e-mailed Bonnie Voegele at SPD to report that she had received an out-of-office auto-reply from Ms. Friend-Gray at SPD and to ask whom at SPD she should contact instead:

Sent: Thursday, December 19, 2013 3:53 PM
From: Winkler, Jennifer
To: Voegele, Bonnie
Subject: FW: PDR for surveillance camera protocols

Hi Bonnie,

I got the out of office message for Sheila.  Is there someone else I can talk
to about this?

Jenny

The following morning, Ms. Voegele at SPD e-mailed Ms. Winkler back, reporting that 1) SPD had not received the same request from me as City Council had received and 2) that SPD had received two other requests from me (P2013-3570 and P2013-3571) that were related to SPD’s wireless mesh surveillance network:

Sent: Friday, December 20, 2013 7:47 AM
From: Voegele, Bonnie
To: Winkler, Jennifer
Subject: RE: PDR for surveillance camera protocols

We have not received that request.  But we have received two other ones from
him in regards to the Wireless Mesh (see below).

    1. All summaries and analysis of feedback regarding Seattle Police
    Department's wireless mesh surveillance network, including but not limited
    to all notes taken by Monty E. Moss #5598, Verner B. O'Quinn, Jr. #4920,
    Paul A. Mcdonagh #4708, or Sean P. Whitcomb #6080, regarding the
    approximately four public presentations delivered by SPD staff about the
    network. (P2013-3571)

    2. Draft wireless mesh surveillance network policy, all previous drafts of
    that policy, along with associated metadata.  On Friday, October 8, 2013,
    at approximately 8:00 a.m., in response to [my claim][1] that Seattle
    Police Department have been in perpetual violation of SMC 14.18.40 for the
    past six months, Sean Whitcomb of SPD [wrote to me via Twitter][1] that SPD
    staff "hope to make the draft policy available soon." and that the draft
    policy was at that time "currently under review by the City Attorney's
    Office."  Responsive records should include but not be limited to the draft
    policy to which Mr. Whitcomb referred.  (P2013-3570)

Bonnie Voegele, Records Manager

That afternoon, Ms. Winkler e-mailed Ms. Voegele at SPD back, attaching a document that would eventually be withheld in full, referred to it as a memo rather than as a policy or protocol. Ms. Winkler asked Ms Voegele if SPD had sent that document to me in response either to my two mesh-network-related requests to SPD. She stated that if SPD had released it to me, then the Legislative Department would likely need to consider releasing it to me in response to my October 8 request that was the impetus for her search. She again stated that she had multiple versions of the policy, and thus that she had located multiple records responsive to my request:

Date: Fri, 20 Dec 2013 13:07:42 -0800
From: "Winkler, Jennifer" <Jennifer.Winkler(AT)seattle.gov>
To: "Voegele, Bonnie" <Bonnie.Voegele(AT)seattle.gov>
Subject: RE: PDR for surveillance camera protocols

Thanks, can you tell me if the attached memo was released for either of these?
If so then we will probably have to consider it for this one.  I have lots of
copies of the memo and versions of the policy but nothing that indicates it has
been formally introduced to Council.

Jenny

    [ATTACHED: 20130613 Wireless Mesh Camera Policy (to CM Harrell).docx]

Less than 30 minutes later, Ms. Winkler e-mailed me to repeat that the Legislative Department had concluded its search for responsive records, to inform me that that they continued to review documents, and that I should expect another response, with either an installment of records or with a final update on my request, by January 10, 2014:

Date: Fri, 20 Dec 2013 13:32:27 -0800
From: "Winkler, Jennifer" <Jennifer.Winkler(AT)seattle.gov>
To: 7025-96997557(AT)requests.muckrock.com
Subject: FW: PRR 2013-180 - Surveillance Cameras - status update #3

RE:  Public Records Request No. 2013-180

Dear Mr. Mocek:

In accordance with RCW 42.56.520, this e-mail is to provide you with a status
update  of your Public Records Request dated October 8, 2013 and received by
the Legislative Department same date,  whereby you request the following:

    Surveillance equipment operational protocols and surveillance equipment
    data management protocols provided to the City Council since enactment of
    Seattle ordinance number 124142, including all drafts and final versions.

The Legislative Department has concluded its search for responsive records and
continues to review documents.  The remaining document sets will require
additional review.   Our office will contact you on or before January 10, 2013
with an installment of responsive records or a final update on your request.
Of course if we complete our search sooner, any responsive records will be made
available at that time.

Please feel free to contact me directly with any questions or concerns.

Jennifer Winkler

On Behalf of Sharon Johnson
Public Records Officer
Legislative Department, City of Seattle

A few days later, Monday morning, Ms. Voegele at SPD replied to Ms. Winkler, reporting 1) that SPD had not released to me the 2013-06-13 document about which Ms. Winkler inquired, and 2) that SPD staff planned to meet one week later (December 30) to decide what records to release to me in response to the requests I filed with SPD.

Sent: Monday, December 23, 2013 8:27 AM
From: Voegele, Bonnie
To: Winkler, Jennifer
Subject: RE: PDR for surveillance camera protocols

It has not yet been released.  We are meeting next Monday to decide what will
be released.

Bonnie Voegele, Records Manager

20 minutes later, Ms. Winkler e-mailed back to request notification of the decision SPD would make the following week and to report that Legislative Department had extended their response due date for my request:

Date: Mon, 23 Dec 2013 08:47:12 -0800
From: "Winkler, Jennifer" <Jennifer.Winkler(AT)seattle.gov>
To: "Voegele, Bonnie" <Bonnie.Voegele(AT)seattle.gov>
Subject: RE: PDR for surveillance camera protocols

Thanks, if you could let me know what is decided, I'd appreciate it.   We have
extended our response time to 1/10 for that one

Jennifer

On January 4, an auto-generated request for status update was sent:

Date: Sat, 4 Jan 2014 02:00:13 -0800
From: Phil Mocek <7025-96997557(AT)requests.muckrock.com>
To: "Winkler, Jennifer" <Jennifer.Winkler(AT)seattle.gov>
Subject: RE: Freedom of Information Request #2013-180

I wanted to follow up on the following Freedom of Information request, copied
below, and originally submitted on Oct. 8, 2013. Please let me know when I can
expect to receive a response, or if further clarification is needed.  You had
assigned it reference number #2013-180.

On Monday, January 6, 2014, a week after SPD’s planned meeting to discuss my two mesh-network-related requests and 90 days after I filed my request, Assistant City Attorney Mary Perry e-mailed 15 city employees to report that SPD had received records requests from Seattle newspaper The Stranger and from me, and also to notify recipients of a plan to coordinate further responses.

In that e-mail, Ms. Perry revealed that an installment of records about the mesh network had already been provided to The Stranger. She requested that recipients send to her copies of requests received from The Stranger and from me, related communications between them and us, responsive records provided to us already, and responsive records not yet provided to us.

Sent: Monday, January 06, 2014 4:47 PM
From: Perry, Mary
To: Socci, Angela; Voegele, Bonnie; Hillyard, Naomi
Cc: Podlodowski, Tina; Kimerer, Clark; Anderson, Valarie; McDonagh, Paul;
    Barden, Eric; O'Quin, Verner; Moss, Monty; Seu, Carlton; Smith, Gary;
    Jaeger, Matthew C; Craver, Nancy; DuComb, Darby
Subject: PDRs for Wireless Mesh Network Records

Angela, Bonnie, and Naomi:

The Mayor's Office, Law Department, and SPD have received requests from The
Stranger for records regarding the wireless mesh network.  SPD has also
received a narrower request from Phil Mocek for records related to drafts of
the wireless mesh network policy.

In order to ensure that the Mayor's Office, SPD, and the Law Department provide
consistent responses to the requests, please send Matt Jaeger the following by
January 8:

    1. Copies of The Stranger and/or Mocek requests;

    2. Communications with the requesters;

    3. Responses and records provided thus far (Naomi need not send a copy of
       installment 1 of The Stranger request already given to Law Dept.) ;

    4. Responsive records that have not yet been provided.

We will follow up to coordinate further response to requests. Please call me if
you have any questions.

Thanks,
Mary F. Perry
Assistant City Attorney

I don’t know why coordination of responses would be necessary. If everyone followed the law and provided records as requested except for those which are specifically exempted from the Public Records Act, responses would naturally match. It’s as if there was concern that records might be withheld from some requesters but not from others.

At the end of that week, on January 10, Matt Jaeger at the City Attorney’s office (who was very helpful when I contacted him last year about some research I was doing in hopes of identifying records his office might hold) e-mailed Angela Socci at SPD to ask about records she might have that were related to Ms. Perry’s e-mail concerning The Stranger and me:

Sent: Friday, January 10, 2014 3:03 PM
From: Jaeger, Matthew C
To: Socci, Angela
Subject: FW: PDRs for Wireless Mesh Network Records

Hello Angela,

I wanted to see about the documents you may have related to the below issues.

Thank you!
Matt

-----Original Message-----
Sent: Monday, January 06, 2014 4:47 PM
From: Perry, Mary
To: Socci, Angela; Voegele, Bonnie; Hillyard, Naomi
Cc: Podlodowski, Tina; Kimerer, Clark; Anderson, Valarie; McDonagh, Paul;
    Barden, Eric; O'Quin, Verner; Moss, Monty; Seu, Carlton; Smith, Gary;
    Jaeger, Matthew C; Craver, Nancy; DuComb, Darby
Subject: PDRs for Wireless Mesh Network Records

Angela, Bonnie, and Naomi:

The Mayor's Office, Law Department, and SPD have received requests from The
Stranger  for records regarding the wireless mesh network.  SPD has also
received a narrower request from Phil Mocek for records related to drafts of
the wireless mesh network policy.
  [TRUNCATED]
--------------------------

Later that afternoon, Ms. Winkler reported to me that the Legislative Department was still reviewing documents and that they had identified four records responsive to my request. This was at least 19 days after she had located responsive records and reported such to other city staff. In her e-mail to me, she claimed that those records she had identified would require review by legal counsel prior to disclosure and that this would occur by February 4, at which time I would be provided with either the records or an exemption log for them:

Date: Fri, 10 Jan 2014 16:50:38 -0800
From: "Winkler, Jennifer" <Jennifer.Winkler(AT)seattle.gov>
To: 7025-96997557(AT)requests.muckrock.com
CC: "Johnson, Sharon" <Sharon.Johnson(AT)seattle.gov>
Subject: RE: PRR 2013-180 - Surveillance Cameras - status update #4

RE:  Public Records Request No. 2013-180  - status update #4

Dear Mr. Mocek:

In accordance with RCW 42.56.520, this e-mail is to provide you with a status
update  of your Public Records Request dated October 8, 2013 and received by
the Legislative Department same date,  whereby you request the following:

    Surveillance equipment operational protocols and surveillance equipment
    data management protocols provided to the City Council since enactment of
    Seattle ordinance number 124142, including all drafts and final versions.

The Legislative Department has concluded its search for responsive records and
continues to review documents.  We have identified 4 documents responsive to
your request.  The contents of the documents will require review by our legal
counsel as to their disclosure status.  We anticipate they will have rendered
their decision by February 4th, 2013 at which time we will either release the
documents or provide you with an exemption log for them.

Please feel free to contact me directly with any questions or concerns.

Jennifer Winkler
On Behalf of Sharon Johnson

Around the same time as Ms. Winkler sent me that update, near the end of day on a Friday, Angela Socci at SPD responded to the request from Matthew Jaeger at the City Attorney’s office, providing 1) a 2013-07-11 draft of the mesh network policy, described as the latest version of that policy and as one that had not been “presented to Council,” and 2) draft of a related bill that had been sent “sent to the ACLU for comment.”

Sent: Friday, January 10, 2014 4:56 PM
From: Socci, Angela
To: Jaeger, Matthew C
Cc: Perry, Mary; Smith, Gary; Doss, Greg
Subject: RE: PDRs for Wireless Mesh Network Records

All,

Attached please find a copy of the draft wireless mesh system policy and draft
ordinance sent to the ACLU for comment. The latter is the most recent version
of the department policy. It has not been presented to Council.

Sorry for the delay. Our email system was down. Let me or Greg Doss know if you
have any questions.

Thanks,
Angela

  [ATTACHED: 20130711 Wireless Mesh Camera Policy - draft.docx]
  [ATTACHED: SPD Wireless Mesh Protocols ORD transmitted to MO on Nov 19.docx]

Monday morning, Matthew Jaeger at the City Attorney’s office forwarded Ms. Socci’s (SPD’s) e-mail, along with the two attachments, without additional comment, to Ms. Winkler:

Date: Mon, 13 Jan 2014 09:57:56 -0800
From: "Jaeger, Matthew C" <Matthew.Jaeger(AT)seattle.gov>
To: "Winkler, Jennifer" <Jennifer.Winkler(AT)seattle.gov>
Subject: FW: PDRs for Wireless Mesh Network Records

-----Original Message-----
Sent: Friday, January 10, 2014 4:56 PM
From: Socci, Angela
To: Jaeger, Matthew C
Cc: Perry, Mary; Smith, Gary; Doss, Greg
Subject: RE: PDRs for Wireless Mesh Network Records

All,

Attached please find a copy of the draft wireless mesh system policy and draft
ordinance sent to the ACLU for comment. The latter is the most recent version
of the department policy. It has not been presented to Council.
  [TRUNCATED]
--------------------------

  [ATTACHED: 20130711 Wireless Mesh Camera Policy - draft.docx]
  [ATTACHED: SPD Wireless Mesh Protocols ORD transmitted to MO on Nov 19.docx]

On January 31, an auto-generated request for status update was sent:

Date: Fri, 31 Jan 2014 02:04:35 -0800
From: Phil Mocek <7025-96997557(AT)requests.muckrock.com>
To: "Winkler, Jennifer" <Jennifer.Winkler(AT)seattle.gov>
CC: "Johnson, Sharon" <Sharon.Johnson(AT)seattle.gov>
Subject: RE: Freedom of Information Request #2013-180

I wanted to follow up on the following Freedom of Information request, copied
below, and originally submitted on Oct. 8, 2013. Please let me know when I can
expect to receive a response, or if further clarification is needed.  You had
assigned it reference number #2013-180.

On February 4, 2014, 119 days after I filed my request, Bonnie Voegele at SPD e-mailed Ms. Winkler to report that she had recently released a 2013-07-11 draft of the policy to me in response to a request I filed with SPD. A copy of that draft was attached.

Date: Tue, 4 Feb 2014 13:03:04 -0800
From: "Voegele, Bonnie" <Bonnie.Voegele(AT)seattle.gov>
To: "Winkler, Jennifer" <Jennifer.Winkler(AT)seattle.gov>
Subject: Mocek Public Disclosure Request P2013-3570 (SPD)

Jennifer,

Here is the draft policy which I was told was previously released.  I just
released it to Mocek re:  P2014-3570

Bonnie Voegele, Records Manager

    [ATTACHED: 20130711 Wireless Mesh Camera Policy - draft.docx]

Ms. Winkler replied to Ms. Voegele at SPD, stating that she had the 2013-07-11 draft and would release it that day. She sent 2013-05-08 and 2013-06-13 drafts to Ms. Voegele.

Date: Tue, 4 Feb 2014 13:26:33 -0800
From: "Winkler, Jennifer" <Jennifer.Winkler(AT)seattle.gov>
To: "Voegele, Bonnie" <Bonnie.Voegele(AT)seattle.gov>
Subject: RE: Mocek Public Disclosure Request P2013-3570 (SPD)

Thanks Bonnie,

We have that one and will release it today as well.   Here are the other two
drafts we have that we are still questioning their release.

    [ATTACHED: 20130613 Wireless Mesh Camera Policy (to CM Harrell).pdf]
    [ATTACHED: 20130508 Wireless Mesh Camera Policy DRAFT 9.docx]

Later that afternoon, on February 4, 2014, nearly four months after I placed my request and more than six weeks`after Ms. Winkler located responsive records and discussed them via e-mail with Bonnie Voegele at SPD, she sent me an initial installment of responsive records, consisting of a single draft of the protocol. It was provided as a PDF, not named the same as any of the files that had been passed around between various agencies in the aforementioned inter-agency discussions, that did not include any internal date or revision numbers. She repeated her January 10 claim that other responsive records required review by legal council prior to disclosure, and provided a new estimate of February 21 for completion of that review and either release of records to me or production of an exemption log.

Date: Tue, 4 Feb 2014 15:35:54 -0800
From: "Winkler, Jennifer" <Jennifer.Winkler(AT)seattle.gov>
To: 7025-96997557(AT)requests.muckrock.com
Subject: PRR 2013-180 - Surveillance Cameras - install #1

RE:  Public Records Request No. 2013-180  - installment #1

Dear Mr. Mocek:

In accordance with RCW 42.56.520, this e-mail is to provide you with an
installment of records responsive to your Public Records Request dated October
8, 2013 and received by the Legislative Department same date,  whereby you
request the following:

    Surveillance equipment operational protocols and surveillance equipment
    data management protocols provided to the City Council since enactment of
    Seattle ordinance number 124142, including all drafts and final versions.

The Legislative Department has concluded its search for responsive records and
continues to  review documents. We have identified 3 documents responsive to
your request. Attached is one responsive document, the contents of the 2
remaining documents will require review by our legal counsel as to their
disclosure status.  We anticipate they will have rendered their decision by
February 21st, 2013 at which time we will either release the documents or
provide you with an exemption log for them.

Please feel free to contact me directly with any questions or concerns.

Jennifer Winkler

On Behalf of Sharon Johnson

    [ATTACHED: 2013-180 install 1.pdf]

A few hours after receiving that first installment, I wrote back to confirm receipt and express concern with the time it took for her office to locate documents due by law to City Council almost a year earlier. I asked for an approximation of how much time was spent weekly on processing my request. I asked what led her to believe that the unreleased responsive records were of such a sensitive nature that legal review of them was required prior to allowing the public to see them.

Date: Tue, 4 Feb 2014 17:54:54 -0800
From: Phil Mocek <7025-96997557(AT)requests.muckrock.com>
To: "Winkler, Jennifer" <Jennifer.Winkler(AT)seattle.gov>
Subject: RE: Freedom of Information Request #2013-180

RE: My public records request of October 8, 2014 (your identifier: 2013-180)

Dear Ms. Winkler:

I received your e-mail of February 4, 2014, this afternoon. In it, you provided
a single file, 588 KB, MD5 checksum 4a438609322d2306dcd69718fe5bc7d7.  This
record contains an unversioned, undated, draft policy for "Wireless Mesh
Network Cameras."  Presumably these are those cameras that Seattle Police
Department sneaked onto Alki Beach last year under the guise of "Port Security"
using funding from the United States Department of Homeland Security after City
Council performed their annual rubber-stamping of the DHS Urban Areas Security
Initiative grant.

I am concerned that almost a year after passage of an ordinance that required
multiple city departments to provide City Council protocols like this for
approval, it took three months for your office to locate any such records and
provide just one of them to me.

Approximately how much time per week has been spent processing my request?

I'm baffled by your claim that draft versions of public policy must undergo
legal review before disclosure to the public.  Could you please explain just
what makes you believe these are of such a sensitive nature?

Cordially,
Phil Mocek

Neither Ms. Winkler nor anyone else ever answered those questions.

The following day, Ms. Winkler forwarded my e-mail to her supervisor, Sharon Johnson.

Date: Wed, 5 Feb 2014 08:18:42 -0800
From: "Winkler, Jennifer" <Jennifer.Winkler(AT)seattle.gov>
To: "Johnson, Sharon" <Sharon.Johnson(AT)seattle.gov>
Subject: FW: Freedom of Information Request #2013-180

Forwarding for your response, etc.

-----Original Message-----
Sent: Tuesday, February 04, 2014 5:55 PM
From: 7025-96997557(AT)requests.muckrock.com
To: Winkler, Jennifer
Subject: RE: Freedom of Information Request #2013-180

RE: My public records request of October 8, 2014 (your identifier: 2013-180)

Dear Ms. Winkler:

I received your e-mail of February 4, 2014, this afternoon. In it, you provided
a single file, 588 KB, MD5 checksum 4a438609322d2306dcd69718fe5bc7d7.  This
record contains an unversioned, undated, draft policy for "Wireless Mesh
  [TRUNCATED]
--------------------------

A few hours later, Ms. Winkler forwarded my email to multiple staff at the City Attorney’s office. In that message, she briefly summarized related activity already performed in response to my records request and requested guidance on responding to me.

Date: Wed, 5 Feb 2014 10:13:26 -0800
From: "Winkler, Jennifer" <Jennifer.Winkler(AT)seattle.gov>
To: "Perry, Mary" <Mary.Perry(AT)seattle.gov>,
    "Smith, Gary" <Gary.Smith(AT)seattle.gov>
CC: "Johnson, Sharon" <Sharon.Johnson(AT)seattle.gov>,
    "Jaeger, Matthew C" <Matthew.Jaeger(AT)seattle.gov>
Subject: FW: Freedom of Information Request #2013-180 - ATTORNEY CLIENT PRIVILEGE

Hello,

Please see the below from Mr. Mocek regarding the PDR he has filed with the
Legislative department.

We did a search, the mesh network cameras were the only ones that showed up,
apparently no other departments have filed procedures as of the date of his
request.

We sent updates to Mr. Mocek on a regular basis, met every deadline that we set
up, provided him the records once we had the approval of SPD.  We would
appreciate your guidance on how best to respond to Mr. Mocek.  I have attached
the final two drafts that we have (he asked for final and drafts) that we have
yet to provide as well as the one document we provided.  Please note, this is
the format that it came to us in, we did not draft it, this is how it came to
us, no date, draft number, etc.

Thanks
Jennifer

-----Original Message-----
Sent: Tuesday, February 04, 2014 5:55 PM
From: 7025-96997557(AT)requests.muckrock.com
To: Winkler, Jennifer
Subject: RE: Freedom of Information Request #2013-180

RE: My public records request of October 8, 2014 (your identifier: 2013-180)

Dear Ms. Winkler:

I received your e-mail of February 4, 2014, this afternoon. In it, you provided
a single file, 588 KB, MD5 checksum 4a438609322d2306dcd69718fe5bc7d7.  This
record contains an unversioned, undated, draft policy for "Wireless Mesh
  [TRUNCATED]
--------------------------

    [ATTACHED: 20130613 Wireless Mesh Camera Policy (to CM Harrell).pdf]
    [ATTACHED: 20130508 Wireless Mesh Camera Policy DRAFT 9.docx]
    [ATTACHED: 2013-180 install 1.pdf]

In that message, Ms. Winkler revealed that she had provided the first installment of responsive records (a single record) only after receiving approval from SPD to do so. No explanation for the police department’s veto power on the Legislative Department’s potential compliance with the Public Records Act was provided.

This e-mail, provided to me as part of the administrative tracking file, seems to have attached to it the two documents that multiple agencies worked so diligently to keep out of public view.

Despite Ms. Winkler’s request for guidance on how best to respond to my e-mail, I never received a response to that e-mail.

The following week, on February 13, I sent another followup, repeating my request for an estimate of how much time was spent weekly on the processing of my request. I explained in detail why I expected the request, now months past due, to have taken only about a week to complete. I explained that these records are of great interest to the public. I explained that disclosure of the records was urgently needed, as City Council had the previous week discussed a bill that would authorize the acceptance of more federal funding for police equipment, and that City Light were moving steadily forward with plans to acquire and deploy equipment that should require them to submit protocols for use to City Council.

Date: Thu, 13 Feb 2014 09:11:51 -0800
From: Phil Mocek <7025-96997557(AT)requests.muckrock.com>
To: "Winkler, Jennifer" <Jennifer.Winkler(AT)seattle.gov>
Subject: RE: Freedom of Information Request #2013-180

Dear Ms. Winkler:

I have received no contact regarding this matter since I e-mailed to you nine
days ago several questions about its processing.

Again:  Approximately how much time per week has been spent processing my
request?

It took your office three months from the time I requested these records until
you provided to me what you called a first installment of responsive records.
This delay is unreasonable, and seems to be a violation of the Public Records
Act.  Nobody has communicated any explanation of the delay.  I expected that my
request would be routed to the office of Councilmember Bruce Harrell, chair of
the Public Safety, Civil Rights, and Technology Committee, then delegated to a
staff member charged with collecting these records that Mr. Harrell's committee
requested by way of passing Council Bill 117730 in March of 2013, who would
pull a file folder, scan its content, and e-mail it to me.  I cannot imagine
why this would have taken more than a week or so to complete.

The surveillance equipment acquisitions that prompted the aforementioned bill,
now an ordinance which required city departments to submit to your office more
than nine months ago the records I have requested of you, was a widely-reported
matter of great public interest.  Seattle Police Department repeatedly sidestep
municipal oversight by using funding from the United States government to
purchase surveillance equipment for use in performing suspicionless
surveillance of City Council's constituency.

This is also an issue of great urgency.  City Council's Public Safety, Civil
Rights, and Technology Committee discussed last week an ordinance allowing
Seattle Police Department to accept *more* money from the United States
Department of Homeland Security, similar to that which funded surveillance
equipment that fueled public outrage a year ago.  Seattle City Light are
barreling ahead with plans to install so-called "smart meters" on ratepayers'
homes to collect and report real-time data about our energy usage, yet as Josh
Walter of City Light reported to me via e-mail on February 7, they have no
criteria for selecting devices that properly safeguard this sensitive
information about our homes.

The records I requested, if they exist, are undoubtedly well-known to people
within City Council.  If they do not exist, then it is indication that city
departments are flouting the law City Council passed almost 11 months ago, and
thus their lack of existence should be well-known to people within City
Council.  I can imagine no reason, and you have offered no reason, why four
months after I requested these records, you have yet to either provide them to
me or notify me that they do not exist.

You claimed in your e-mail to me on January 10 that the "contents of the
documents will require review by our legal counsel as to their disclosure
status."  The people of this state, in delegating authority to the agencies
that serve them, do not give their public servants the right to decide what is
good for the people to know and what is not good for them to know.  I repeat my
request from nine days ago for you to explain what makes you believe that
surveillance equipment operational protocols and data management protocols
submitted to City Council for approval are of such a sensitive nature that you
may have legal authority to hide them from the public.

Cordially,
Phil Mocek

Nobody ever responded to that e-mail.

Almost two weeks later, on February 25, Ms. Winkler e-mailed staff at the City Attorney’s office and at the Police Department to request “a definitive answer on whether” the responsive records to which she continued to deny me access were “releasable.”

Sent: Tuesday, February 25, 2014 9:01 AM
From: Winkler, Jennifer
To: Perry, Mary; Jaeger, Matthew C; Voegele, Bonnie
Subject: FW: Mocek Public Disclosure Request P2013-3570 (SPD)

Hello,

I need a definitive answer on whether these are releasable.  Our final install
is due tomorrow and we need to know what the status is on others releasing
these two drafts.

Thanks
Jennifer

About 20 minutes later, Bonnie Voegele at SPD replied with two statements: 1) SPD had released (to whom, she did not indicate) only the draft that was sent to ACLU. 2) SPD intended to withhold public access to two other drafts, citing a “deliberative process” exemption to the Public Records Act–one that the RCFP analysis I cited above indicates is clearly not applicable, since these documents constituted inter-agency, not intra-agency, communications.

Sent: Tuesday, February 25, 2014 9:24 AM
From: Voegele, Bonnie
To: Winkler, Jennifer
Cc: Perry, Mary; Jaeger, Matthew C
Subject: RE: Mocek Public Disclosure Request P2013-3570 (SPD)

SPD has only released the version that went to ACLU.  SPD will not be releasing
these documents at this time.  We will be completing an exemption log using the
deliberative process exemption.

Deliberative Process: The record contains preliminary drafts, notes,
recommendations, and intra-agency memorandums in which opinions are expressed
or policies formulated or recommended. RCW 42.56.280, See also, ACLU v. City of
Seattle, 121 Wn.App.544, 549-50, 89 P.3d 295 (2004), Hearst Corp. v. Hoppe, 90
Wn.2d 123, 133,580 P.2d 246 (1978).  Explanation: Disclosure of the information
before an agency has reached a decision would discourage agency employees from
providing frank and thorough input regarding the matter and would impair an
agency's ability to make well-informed decisions.

Bonnie Voegele, Records Manager

Later that day, Ms. Winkler replied, stating that she would close my request, citing the same exemption that Ms. Voegele reported SPD’s intent to claim, unless Mary Perry or Matthew Jaeger at the City Attorney’s Office advised her to do otherwise by noon the following day.

Date: Tue, 25 Feb 2014 16:53:18 -0800
From: "Winkler, Jennifer" <Jennifer.Winkler(AT)seattle.gov>
To: "Voegele, Bonnie" <Bonnie.Voegele(AT)seattle.gov>
CC: "Perry, Mary" <Mary.Perry(AT)seattle.gov>,
    "Jaeger, Matthew C" <Matthew.Jaeger(AT)seattle.gov>
Subject: RE: Mocek Public Disclosure Request P2013-3570 (SPD)

Thanks Bonnie,

Unless I hear otherwise from Mary or Matt by noon on Wednesday, the Legislative
department will follow this as well and then close this particular request.

Jennifer

The following morning, Ms. Winkler e-mailed her supervisor, Sharon Johnson, to notify Ms. Johnson of the noon deadline for a response from the City Attorney’s office and of her suspicion that they would not respond.

Date: Wed, 26 Feb 2014 08:22:05 -0800
From: "Winkler, Jennifer" <Jennifer.Winkler(AT)seattle.gov>
To: "Johnson, Sharon" <Sharon.Johnson(AT)seattle.gov>
Subject: FW: Mocek Public Disclosure Request P2013-3570 (SPD)

Here is what I sent yesterday afternoon to Mary and Matt. Gave them a deadline
but I doubt they will get back to me.

Sent with Good (www.good.com)

-----Original Message-----
Sent: Tuesday, February 25, 2014 04:53 PM Pacific Standard Time
From: Winkler, Jennifer
To: Voegele, Bonnie
Cc: Perry, Mary; Jaeger, Matthew C
Subject: RE: Mocek Public Disclosure Request P2013-3570 (SPD)

Thanks Bonnie,

Unless I hear otherwise from Mary or Matt by noon on Wednesday, the Legislative
department will follow this as well and then close this particular request.

Jennifer

I had still received no contact on this matter since receiving the initial installment of responsive records three weeks earlier, on February 4. Nobody responded to my direct requests on February 4 and February 13 for simple information about the processing of my request.

On February 26, three hours prior to the deadline Ms. Winkler had provided City Attorney’s office staff for response to her proposal to follow SPD’s lead and deny me access to the remaining responsive records (something of which I was unaware until receiving the administrative tracking file weeks later), I wrote again, politely but firmly expressing my growing frustration with the situation and explaining that the unlawful delay in providing access to these records drastically reduced the possibility of informed public input of impending City Council votes. I requested that she comply with the law and provide the records I requested 20 weeks earlier.

Date: Wed, 26 Feb 2014 09:01:05 -0800
From: Phil Mocek <7025-96997557(AT)requests.muckrock.com>
To: "Winkler, Jennifer" <Jennifer.Winkler(AT)seattle.gov>
Subject: RE: Freedom of Information Request #2013-180

This is a follow up to request number 2013-180:

Dear Ms. Winkler:

I have received no contact regarding this matter since I e-mailed to you three
weeks ago with questions about its processing.  On February 13, I repeated my
request for you to tell me how much time per week has been spent processing my
request since I placed it more than 20 weeks ago.  I believe this delay in
providing access to public records is unreasonable, but I have given you
repeated opportunity to explain the delay.  Yet you have not done so.

The records I requested were due *by law* to City Council in April of last
year.  I requested them in October.  You acknowledged their existence in your
e-mail to me of November 22.  Since then, four months have passed, and you have
provided only a subset of records you located---one record, e-mailed to me on
February 4---and continue to withhold access to the other records you located.
On *that* date, you estimated that by February 21, you would provide me with
either the records I requested in October or an exemption log for them.  It is
February 26, and you have provided neither.

This is a matter of great concern to the public.  Your delays are a hindrance
to our understanding of the policies by which we are governed, they drastically
reduce the possibility of informed public input on related matters such as the
impending Council vote on more U.S. Department of Homeland Security funding for
surveillance equipment for police, and they are a violation of the Public
Records Act.

Please comply with the law and provide the records I requested 20 weeks ago.

Cordially,
Phil Mocek

That afternoon, Ms. Winkler closed my request as planned, withholding in their entirety the remaining responsive records of which she was reportedly aware.

Date: Wed, 26 Feb 2014 16:00:12 -0800
From: "Winkler, Jennifer" <Jennifer.Winkler(AT)seattle.gov>
To: 7025-96997557(AT)requests.muckrock.com
CC: "Johnson, Sharon" <Sharon.Johnson(AT)seattle.gov>
Subject: PRR 2013-180 - Surveillance Cameras - closure

Via E-Mail Message

RE:  Public Records Request No. 2013-180

Dear Mr. Mocek:

As a follow-up to my email of February 4th, this is to inform you that
review of remaining documents has been completed.  It has been determined
that those documents are exempt under RCW 42.56.280 and are therefore being
withheld in their entirety.  An exemption log is attached.

If you wish to appeal the exemption of the listed documents, please submit your
appeal in writing within five business days of receipt of this message to:

    Monica Simmons
    City Clerk
    P.O. Box 94728
    Seattle, WA 98124-4728
    Monica.simmons(AT)seattle.gov
    (206) 684-8361

This concludes the Legislative Departments response to your request.

Sincerely,
Jennifer Winkler
On behalf of Sharon Johnson

    [ATTACHED: ExemptionLog2013-180.pdf]

Unsatisfied with this outcome, curious what had taken so long, and having found my polite requests for Ms. Winkler to inform me of the reason for the delay seemingly ignored, I filed a request the following day for the administrative tracking file. That request was completed by Sharon Johnson of the Legislative Department on Thursday, March 13, 2014.

My review of that file leads me to conclude that throughout processing of my request to City Council, 2013-180, filed October 8, 2013, staff at the Legislative Department were less concerned with what the Public Records Act requires of them than with what staff at the Seattle Police Department desired for the public to know about their work. It seems that the Legislative Department have allowed staff at the Police Department to say what is good for the people to know and what is not good for us to know, violating both the spirit and letter of the law.

I transcribed the press conference Seattle Mayor Ed Murray held to field questions about Interim Police Chief Harry Bailey’s recent decision to overturn several findings of officer misconduct (see “Police Chief Misled Mayor and Council on Misconduct Decision” by Dominic Holden for background information):

Ed Murray: Good evening. I wanted to provide some context to the disciplinary decisions in the Seattle Police Department that many of you have been reporting about. and then I will take your questions as well as people from my office, from the personnel office, and from Chief himself.

So why don’t those folks who are gonna take questions come up here so we don’t have to–

I think it’s important to remember that this story originated with a leak, which is the first mistake made, that there was a leak.

We currently have a backlog of grievances that are being filed against disciplinary decisions that have already been made by command staff. It appears that almost every decision—and I may be wrong, it may be every decision—is in some sort of grievance appeal process. On September 18, 2013, please note the date, 19 active cases were attempted for mediation. None of these were successful, and so all were slated for arbitration. Six cases, in consultation with the City Attorney’s office, were already decided by the previous chief for settlement before January of this year.

The chief, the current chief Bailey, signed off on a decision that was made as a result of a day long process that involved our predecessors and the City Attorney’s office.

There was one additional case, the Marion case, for which the City Attorney did not provide consultation on, or before—and that was unfortunate—it leaked to the media. The determination was made by Chief Bailey to change the discipline in this case. To change it from a day without pay. And despite what some in the press have reported, a day without pay means the individual could take other pay, such as vacation, to fill that in. So a day without pay, that could actually turn into a vacation day, for day substituted for training. A day of training and education. While this could be perceived as a lesser punishment under the current legal framework, Chief Bailey believes, and I support him, that the framework for this process is reflective of what is most constructive: Training. Changing behavior.

Chief Bailey is opting again and again to change behavior guided by the principles of fairness and past practices and due process. Officer Marion in this case had no previous incidents of misconduct against him. Nevertheless, we will have an opportunity to be retrained, and go to roll calls in his precinct to explain what he did wrong, and use it as a teaching moment for other officers. Again: Far more effective approach than a day without pay that can be turned into a day with pay. Chief Bailey believes, as I do, that this is far more powerful and effective. And it goes along with the reforms that we are trying to put in place. In this case I encourage everyone, including the monitor, to take a look at when the incidents happened, when the decisions were made, and what is the true impact on reform. In addition, I have asked Barney Maleki, who the council allowed me to retain, to review our grievance process to ensure that it happens in a timely manner. Processes that go on for years, and case loads that build up, do not help the public, they do not help the officers, and they do not further the reform process.

Thank you, and now, we will take questions.

Dominic Holden: Mayor Murray. This is a little awkward. Why would you need to change the suspension discipline in order to provide more training? Particularly given that the US Department of Justice has said that we need more de-escalation training, and that you can have this officer speak to people at roll call any time you like, why are you saying that this sort of training would preclude a suspension?

Ed Murray: Chief?

Harry Bailey: Thank you. I think what the Mayor said previously make a lot more sense to me. It was my decision to make that change. And I thought that, again, having the officer to go out and talk to his fellow officers about what he could do better and to abort those types of situations make a lot more sense than not doing that or just taking a day off.

Dominic Holden: That didn’t really answer the question. Is there anything that prevents you from saying–

Ed Murray: None–

Dominic Holden: None.

Ed Murray: `Dominic, none. The point is, what is the best way to proceed with the disciplinary action? Is it always a day off? Is it always a day off with pay? Does that– Is that discipline? I think that’s a point that you’ve ignored in your stories. And I would add that the police officer involved is willing to sit down in mediation with the complainant, and come to some sort of understanding about what happened.

?reporter: Mayor Murray, regardless of when these suspensions were doled out, or when these penalties were doled out, or when these cases were decided on, do you have any concern that this undermines the whole OPA process? Every time you change a decision like this. Now we’re up to, I think, seven is what was reported earlier.

Ed Murray: So, first of all, you need to realize that this has been ongoing practice. That when there are cases pending there’s a review by the police department, as there was under Chief Pugel, and the City Attorney’s office, to decide which of these cases probably should not be pursued. That is current practice. So, it happened before we got here. What I said we need to do, and I’ve asked Barney Meleckie to do, is actually to review this process so that we come up with a process that both helps the public, helps the officer, and furthers the reform process.

?reporter: Who made the final decision on these other six cases, to approve removing the sustained finding of misconduct?

Ed Murray: This was, there was, again, a process went on in December. I believe it was December. (turns to face someone behind him) Am I correct? September? September. So I would ask– Some sense I can tell you who, but I’d have to refer you to the prior individuals who held these positions. But there was a day meeting on a series of cases. In that meeting was the then– whoever represented the command staff at that point, and representatives of the City Attorney’s office, who decided on these six cases.

?reporter: Did they make the active decision at that point to reverse the finding? Was it formal–

Ed Murray: The recommendation was made, yes, and Chief Bailey signed off on it when we got into office and I appointed him.

?reporter: So who signed the documents that actually– Who signed the document with Rich O’Neil that reversed these decisions?

Ed Murray: (turns) Do you know … Do you want to speak to this? I think that… You’re the lawyer.

?HR: I’m the HR person. There was a process that went on, a mediation process that went on in September, to the best that I understand, and none of us in the room were at that process. These are people who predated us. At that particular mediation where a number of grievances were looked at. They did not meet resolution, to our understanding, on any of those grievances. Subsequent to that meeting there were additional negotiations that went on, and prior command staff in consultation, our understanding, in consultation with the City Attorney’s office, came to an understanding that six of those grievances would be resolved in the way that you are referring to now. Those decisions were made prior to the change of administration. The actual settlement agreements were signed, I understand (turns to Bailey) by Chief Bailey (Bailey nods) but he was not part of the negotiation or the decision. The decisions had already been made, and he was the signatory at that time.

?reporter: Were they reviewed to determine the facts and circumstances of each case?

?HR: That’s something that I think you would need to address to the law department.

?reporter: There’s apparently 25 cases that are, overall, under review. What’s the status of the remaining case–

Ed Murray: Well, as again, this is a usual thing that has been happening for– under current practice, where you have a series of decisions that are being made, and the appropriate language, I think, is called grievance, here. Process has been initiated by the officer involved. At this point, I have heard different numbers. We’re trying to nail that number down. And those would go through the same process that’s currently in place and was in place. As I said, we’re gonna to take a close look at how this has happened in the past, and decide if this is the best process moving forward. Barney Maleki will initiate that. We’ll certainly consult the monitor for his opinion. There are best practices in the country that don’t have such a convoluted, and I would say somewhat byzantine grievance process. There are two different bodies that officers can appeal to. They can choose. That’s an example of just how byzantine this is. So, you know, five weeks into this, we’re attempting to reform the police department. We’re attempting to speed it up, and there are gonna be more things like this that we come across.

?reporter: Will there be any more cases overturned?

Ed Murray: I have no idea. We’ll have to see what the City Attorney’s office recommends and what we– what the chief recommends to me. And at some point, you appoint to people, and you have trust and faith that those people can make good decisions. And I reviewed these decisions, and under the current structure, I believe that we have made the right decision. Now under a different structure, or if there were a history of complaints, I might not find those the correct decision.

?reporter: Would all the remaining six change the training referrals?

Ed Murray: I don’t know.

?reporter: Mr. Mayor, in terms of Officer Marion, Why do you think it’s a better idea that he get training as opposed to getting both training and a day off?

Ed Murray: Well, you know, again: the day off can be a day off with pay. And I think you don’t pass the red face test with the public when you say a day off with pay. Yeah, you could do that, as I answered Dominic Holden’s question, you could absolutely do that. But I agree with Chief Bailey that it doesn’t accomplish the goal of changing behavior. It just accomplishes the goal of giving someone a day off with pay. And I don’t think that builds confidence in the people who live in this city, that we’re actually trying to change behavior.

?reporter: What kind of training ore you talking about in regards? What’s a day of training look like?

Harry Bailey: In this case, it wasn’t a day of training. It was several weeks of training, when this particular officer had to go out and talk to his roll calls in his precincts, talking about how to better address issues with the community, and how not to– you know, things not to do. So for me, to stand before your peers and admit that, you know, something have happened to you and how you can work to make it better seemed to be a better way at getting at the behavior issue than just simply checking a box with the day off and letting it go.

Brandi Kruse: Mr. Mayor, you’ve mentioned right away that– to emphasize that the reason, I believe, that Mr.– Officer Marion’s discipline changed came came out was a leak to the press. Somewhere along the time, would there have been a release of that change, to the public?

Ed Murray: Sure.

Brandi Kruse: And how would that happen? How do those– If there’s changes in discipline, how does the public find out about it?

Harry Bailey: Each time there’s a change, whoever the chief may be, to that process, there must be a letter written to the Mayor and to the City Council explaining why that happened and the reason, and when the change is made, there’s a sixty day limit that those letters have to go out.

Brandi Kruse: But then is there a way that the public at large can find out about a change?

Harry Bailey: Um, (chuckles) I suspect that through public disclosure you probably can get… (turns to left) I suspect… But it’d only have to be when those cases are completely closed, the letters have been sent out, and there’s no response back either from the Mayor or the City Council.

Dominic Holden: Chief Bailey, you told the Seattle Times yesterday, and then me, and then the Mayor and the council that you concurred with the finding of misconduct and that you just wanted to change the penalty. When I spoke today with Pierce Murphy, the head of the OPA, he said that by changing the penalty or training, that negates the misconduct finding. Could you verify—

Harry Bailey: Mr. Holder, I think the reason I told you on several occasions, the reason I returned your phone call, simply was the fact that you were a complainant in an OPA investigation, not that I was giving you an interview for your paper, and if you’ve talked to Pierce Murphy, then you need to go back and ask him for the reason why he said what he did.

Dominic Holden: The letter that you sent to the Mayor and to the City Council says that you concurred with the finding of misconduct, yet you’re contradicted by Pierce Murphy. And it looks like you were telling City Hall officials something that was not true, and given that you sent him that information on Tuesday, it looks like it’s something that you knew was not true.

Ed Murray: First of all Dominic, I understood from the chief and from my staff that this was a legal change in the status of the discipline. I believe that our OPA process, and what are best practices to reform the police department are not in sync with each other. I don’t believe that a finding that just leads to a day off is really an up-to-date process. I think that the finding that they found should have been able to stay the same but we’re working under a construct here that doesn’t allow for that level of flexibility when you assign the different punishment to it.

Dominic Holden: I think we’re dealing with the larger honesty issue, though. On the one hand, you have a chief who knows when he submits something to the OPA on Tuesday what the legal implications are, yet the information that he is passing out to the media, to the complainant, and to city hall is something different. If you want a reformed police department, don’t you want a chief in charge who’s honest with you?

Ed Murray: So, first of all, I disagree with you. I believe that the information is consistent and doesn’t contradict itself. Although anyone can make any interpretations they want. Second of all, we are restoring honesty to this police department. We are making personnel changes to ensure that this department is honest. We had the US attorney general’s office here for the first time since this process started years ago, regarding the consent degree, who said that Seattle is finally making process. So I just simply disagree. I believe we have a chief who is honest. I believe we have a chief who is taking action against individuals who need to have action taken against, and I believe we have a chief, after many years, who is restoring the public’s faith in this department by who he is and by how he’s acting.

Dominic Holden: I mean, to be absolutely clear, though, the letter that was sent to you said, in unambiguous terms, that the OPA director recommended a disposition of sustained, and I concur with the disposition. Yet he does not concur with the disposition, in fact the disposition has changed.

Ed Murray: You know, so this is a great legal argument. We ought to be in a Jesuit seminary, and splitting hairs. Because, you know, yes. Do we believe that this guy committed an act that he– that got the ruling that it got from OPA? Yes we agree with that. Is the discipline the way to change the behavior? Unfortunately we disagree with that. But we are working under a legal construct that gives us very little, almost no room, for that kind of nuance.

Dominic Holden: Will you agree to unseal the cases as they are handed down to OPA, unseal the settlement agreements? For instance, there have been seven that have been handed down to Pierce Murphy this week, and they concern the new discipline that is being issued in those cases, and potentially new findings. Will you open those up?

Ed Murray: So, that’s a very interesting question that I would have to get back to you on. Obviously when it comes to personnel issues, there are certain laws that we can’t just violate. Whether it’s somebody that works in the Department of Neighborhoods or the Police Department, I would need to understand whether those could become part of public record or not, and then answer your question. I don’t know if anyone has anything to add (turns), we would just need to do the due diligence to be able to answer that question.

Dominic Holden: I’m sure a lot of people would appreciate being able to see that without undergoing the onerous process of the public disclosure process.

Ed Murray: I– I think that you have a point, and again, you don’t hear disagreements on your questions from me or from the chief. What you hear is we’re working under a situation that has been practiced, usual and a custom practice in this department and in this city. It is not what is considered best practice around the country, and you only have to look to California to find examples of best practice that are far less byzantine than this, which is why I asked Barney Maleki to take a look how this currently works and figure out how we can streamline it so that perhaps you won’t end up having to do the level of public disclosure requests that you man. Remember, there’s a whole series of issues that are part of collective bargaining here, that will also tie our hands, that will also have to visit at some point to change some of the aspects of this.

Dominic Holden: Chief Bailey, did you engage at all with the OPA auditor pierce Murphy or the Mayor before making these personnel decisions?

Harry Bailey: Excuse me. What was your question again?

Dominic Holden: Did you consult with the OPA director or auditor or the Mayor before making these decisions.

Harry Bailey: The process does not call for me to confer with the OPA director. Again, once the decision is made, I need to send a letter to the Mayor and to the City Council. Dominic Holden: Given, Mayor, that you were so concerned with Jim Pugel having made personnel decisions before you took office but before the election, do you think there’s a bit of a double standard that on one hand, you say, “this is the chief that I want representing me,” but at the same time, you didn’t want Interim Chief Pugel to represent—

Ed Murray: I’m sorry, I made no comment about any changes that Pu– that, that Interim Chief Pugel made.

Dominic Holden: I think I’m referring to an open secret, perhaps.

Ed Murray: I’ve made no comments. The only conversations I had around the personnel changes would have been with Chief Pugel, and the conversations between myself, he was Chief for about eight days under my watch, or the current chief, or the permanent chief. Our conversations, I’m not gonna discuss with the public. I think it would be unfortunate if one of my chiefs chose to discuss conversations with the Mayor in public.

Steve ?: Mr. Mayor, the, as I understand it specifically says that the officer will no longer be part of the early intervention system, which is part of the Justice Department’s findings. They feel that the EIS system is crucial. Do any of these agreements specifically state that the officers will, because of the misconduct investigation, they will no longer be looped into the EIS system.

Ed Murray: (turns to Bailey) Do you want to answer that?

Harry Bailey: No. Once the system is set up, it is gonna capture all of that, Steve, so it’s nothing in any that settlement that precludes those functions–any officers– being part of the EIS process.

Steve ?: Will they remain in the EIS process?

Harry Bailey: Yes.

Ed Murray: So, I’m gonna take one more question, and maybe I’ll make one more comment then take one more question. So in each of these cases, individuals in the public felt that they were not treated fairly by officers of our police force. What we are attempting to do is find a way to change that behavior. No one in the public should be treated in any way but fairly by a police officer. Regrettably, some– you know, it’ll happen on my watch and it happened on the last watch. Regrettably, from time to time, we see behavior that’s unacceptable. We’re trying to reform a police department that the Justice Department has grown angrier and angrier about. Now, that’s the goal, here. Any last questions? Thank you very much.

I believe I may have been a bit hasty in my assessment yesterday of the situation surrounding Seattle Police Department meddling in the crafting of legislation intended in part to restrict police acquisition and use of surveillance equipment (C.B. 117730).  I still feel that changes to the bill made between versions 10 and 12 weakened the resulting ordinance.  However, while it seemed at first that City Council Public Safety, Civil Rights, and Technology Council chair and mayoral candidate Bruce Harrell was acting in a spineless and/or foolish manner in his interaction with police, I now believe the situation is more complicated than that.

I believe the PSCRT committee truly intended to restrict large-scale public surveillance such as that which SPD intend to begin performing under the guise of “port security,” that in doing so, committee members stumbled upon a different kind of surveillance, and that with SPD’s coaching, they steered clear of that other surveillance.  This is encouraging news, as it suggests to me that they were not simply duped by SPD and are not necessarily oblivious to the subset of concerns some of us have recently expressed to them, but that they simply avoided addressing that other kind of surveillance in order to get an ordinance passed that addresses the issue about which the public have expressed most concern.

This morning, intending to request a copy of the letter Harrell described receiving from the Chief of Police on March 15 (which I did request this afternoon), I reviewed the recordings of yesterday’s council briefing and meeting of full council.  Some of the discussion was a bit disturbing.  Harrell danced around a policing issue that he felt was inappropriate for discussion in public, but that he also believed did not qualify for restriction to private discussion during executive session (i.e., a closed session not subject to our state’s Open Meetings Act).  He said, “A lot of what [our peace officers] do relative to criminal investigations, it’s a little– It’s sensitive information how they go about establishing probable cause, how often they conduct these criminal investigations, where they do it.  And this is not the kind of conversation that you have in executive session ’cause it doesn’t fall under one of the exemptions.”  As an ardent supporter of both open government and ethical policing, this gives me pause.

My transcript of council briefing follows.  This discussion begins at 59 minutes into the recording:

Bruce Harrell: “So, many of you might have received a letter from the Chief on March 15th that captured a paragraph that the police department wanted in it– To give you some context, you may recall that Councilmember Licata and others, including myself, are trying to do in this legislation are just trying to require, before a decision is made, before a purchase is made, or certainly before the use is made, that departments have a very open and transparent conversation on how surveillance equipment should be used, its intended use, a statement of intention, very specific protocols how they are to be used, under what circumstances, etc.  And, it really gets– It allows the city to get their arms around the use of surveillance equipment.  So, and it was a very inclusive process.  We both listened to the Police Department, the Human Rights Commission, other community activists, in this process.

“Getting back to the letter that the chief had sent to us, requesting this paragraph.  It should be very clear: This entire paragraph is in the legislation.  It has been. And so one of their concerns is has been is to whether we are somehow thwarting or inhibiting the Seattle Police Department’s ability to use surveillance equipment in certain criminal investigations on a temporary basis.  And so we had carved out that exception.  And so I think that they– the Police Department actually made an error in this letter, because what they really wanted was something else that we had– something else to sort of clarify the exemption of a criminal investigation.  In other words, we had these criminal investigations already exempted.  And what I passed out to you is some additional language they wanted which is on page six of the document of the ordinance that I– that we have in front of you.

“The sentence, `open in accordance with state law and subject to court rule.’ So, I don’t have any problems with that and it could clarify what we’re trying to do.  Again, we’re not trying to inhibit the Police Department’s ability to use surveillance equipment on a temporary basis for criminal investigations.  What we’re trying to do more is put the p– require each department to put in certain protocols in place when we’re looking at surveillance equipment for general surveillance and protecting our ports, etc.  So, so, we can make that, that change.  I don’t have a– It’s not a substantive change… what we had already and I think we’ll be fine there, so…

“Councilmember Licata, did you want to say something?”

Nick Licata: “Yes.  I did want to have an opportunity to talk to you about this addition because there were some questions raised about how big of a loophole it was providing.  Particularly since we’re talking about protocols being presented so, but, let’s have that conversation later, and see where we go with it.”

Harrell: “Yeah.  There’s a possibility Councilmember Licata and I, and Tom Rasmussen and I talked over the weekend about whether we– if we wanted to hold it for a week or so.  And I’ll just be very candid with you on my position on this.  We have been working with the police department very closely on this.  They gave their several other changes we made at their request. Again, the entire section in their March 15 letter which was just delivered last week is included in there. Trying not to inhibit their ability about criminal investigations, but the challenge we have is:  A lot of what they do relative to criminal investigations, it’s a little– It’s sensitive information how they go about establishing probable cause, how often they conduct these criminal investigations, where they do it.  And this is not the kind of conversation that you have in executive session ’cause it doesn’t fall under one of the exemptions. All the more reason, I think, to have an open and transparent conversation on what these protocols should be.  What is the standard, whether it’s probable cause, exigent circumstances, or articulable suspicion? Whatever the standards are, when they decide to use surveillance equipment, I think that’s a conversation we need to have.

“But certainly this legislation will not inhibit their ability right now to conduct criminal investigations with search warrants, etc.  So, I don’t particularly see a need to hold it.  What I see a need for is to require the department to have this conversation on their protocols.  Quite candidly: Getting information from the department has been somewhat challenging. I’ve been pressing for a May Day report ad nauseum, and I’m not getting that, so sometimes we have to put pressures on these departments to come up and work with us on developing protocols.  And so I think this is a prime opportunity to– we have good legislation in front of us that’s– was very inclusive in the process, and so again, they can come up with protocols and we can have the conversation about it.”

Licata: “The, um–”

Harrell: “You wanna hold?

Licata: “Here’s the– There’s certain areas in here which are still being, shall we say, investigated and clarified. We’re in agreement we want protocols, and the Seattle Police Department’s in favor of coming to us with protocols.  But as often the case is, what do the protocols apply to?  And that is the– what we’re wrestling with right now.  We have exempted them from providing protocols where they have a warrant or where there’s an exigent circumstances.”

Harrell: “A criminal investigation.”

Licata: “Right.  Criminal investigations.  So the question is: What is a criminal investigation that falls outside the area of a warrant and what– or exigent circumstances.  And by exempting all criminal investigations from having crimi– from having the need for protocols, are we opening up too large [Bruce Harrell nods] an area of activity that does not have any protocols. Part of that concern is that– and this is where we probably need some legal assistance, and maybe why you need to hold it, is are we then allowing a City department—in this case Police Department—to define what criminal is without a reference, and therefore anyone could be subject to surveillance.  Or, is there a way of defining a way that is understood by all of us, certainly, that falls within that range?  So that’s what we’re trying to determine.

“The– I talked to the Chief this morning. He’s very concerned about, you know, situations where you might have people who have been sexually assaulted, and they have a lead, or something of that sort.  And there’s other instances where I think all of us would be in agreement upon, but when you go beyond that, that’s the question that I think the public has also raised.  I think there’s a way to resolve it.  I’m not sure if this exact– this wording, and that’s you may need to hold–”

Harrell: “That’s the wording the Police Department gave us.”

Licata: “Exactly.”

Harrell: “And I agree with everything you said, in fact.  So, there– Quite frankly, there seems to be little ambiguity in what a criminal investigation is.  There doesn’t seem to be that.  That they have to have an articulable reason, they has to be some kind of probable cause, some kind of reason to investigate somebody.  It cannot be arbitrary or capricious.  They can’t– There has to be some kind of factual basis.  But to your point:  We would like– I’d like to see that defined so that we leave very little for, you know, in doubt.

“We’ll talk this morning, again, and early this afternoon.  Quite frankly, I just don’t see a need to hold it, because we have exempted criminal investigations as we speak.  If they think there’s need for further clarification, that’s exact– Those are exact kind of departmental protocols we want to see in place.  And it’s– Quite frankly, it’s not that hard to do.  These protocols do not take a lot of time to develop.  They need to sort of describe what their current methods of operations are now using surveillance equipment.  You would think a department would have pretty sophisticated protocols in place already, so this isn’t a lot of work that needs to be done to develop these articulable protocols of criminal investigations, so…  But anyway, we’ll see.  We’ll talk more this morning.  So the other part of– Did anyone else have any questions on the surveillance part?”

Sally Clark: “No– This has been helpful back-and-forth between the two of you, and perhaps we could check in, you know, mid-day with councilmembers to let folks know whether it looks like there’s adequate resolution of this, or whether there’s just too much ambiguity existing–”

Harrell: “What I don’t fully understand is, criminal investigations on a temporary basis are exempted from the protocols right now. Okay?

Tim Burgess: “Some.”

Harrell: “Some.”

Burgess: “If a warrant is issued or it’s an emergency.  What is not exempted and happens frequently is criminal investigations that are done before a warrant can be applied for and establishing probable cause, and I think that’s Chief Diaz’ concern, which is why he wants this additional language to cover non-warrant investigations in accordance with state law and subject to court rule, which is very clearly defined.”

Licata: “That’s exactly it.  And just to expand the conversation, I–”

Harrell: “Okay, let me clarify something, though.  I’m sorry, that was rude of me. ‘Cause that wasn’t totally crap, but go ahead.  Because this was a mistake here.  This language, here, that says, `to be installed on a temporary basis for the purpose of a criminal investigation, comma, *or* pursuant, so it’s a conjunction which says that criminal investigations are exempt.  But she put `or’—Krista did this, sort of in a hurry—as though this is new language.  This conjunction would insinuate there are two conditions: One is whether there is criminal investigation, or there’s lawfully issued warrant.  Not this gray land if there’s a pre-criminal investigation not a warrant. Sorry, I just needed to clarify that.”

Licata: “Is that your perception as well, Councilmember Burgess?”

Burgess: “Well, the– I don’t have the original in front of me, but–”

Licata: “See, this is an area that, this gets to where–

Clark: “So at this point, because we are looking at trying to also discern what staff may have meant with wording, if I could ask that there be a small group that looks at this after we adjourn this meeting, and then again, we could touch base in the mid-day to find out whether we’re in agreement or whether it does look like there needs to be something–”

Licata: “Right.  I think it does get a bit into the weeds and I don’t think we–

Clark: “And in a good way.  I mean Councilmember Harrell, you’ve explained, you know, far more than I think we’ve heard a lot of folks in terms of the detail of what this can mean.  So it’s important, we have spent a fair amount of time on it, and we want to get it right.”

Licata: “I agree.”

Clark: “Good.”

Harrell: “Okay.  Councilmember Licata, I apologize for cutting you off, there.  Did you get your point in?”

Licata: “I– The point is that we need to discuss this before two o’clock and see if we can resolve it.  If not, we’ll just ask for a hold.”

Clark: “Yep.”

Discussion shifted to a different topic at 70m10s.

I previously wrote about Seattle City Council Bill 117730, which would require city departments to receive Council approval before acquiring most surveillance equipment. In the few days between the time when I received a copy of the bill and the introduction of the bill at the March 6, 2013, meeting of the Council’s Public Safety, Civil Rights, and Technology Committee, the bill was revised. When I wrote to a commitee member’s legislative aid for advice on how best to provide my feedback, I was pleased to learn that it had already been received via the aforementioned blog post.

At the March 6 meeting, the committee heard related public testimony and discussed the bill, specifically referencing the then-new version, which I later learned to be number 10. At least a half-dozen people, including Jennifer Shaw of ACLU-WA and I, spoke in favor of the bill during the public comment period of the meeting. No one expressed opposition. Clark Kimerer of Seattle Police Department was in attendance, and when this item of business was up for discussion, he relayed that with changes included in the latest version of the bill, SPD did not oppose it. It is now scheduled for discussion and possible vote at the March 18, 2013, meeting of the full council. I believe it is likely to pass.

I compared the two versions of the bill and will discuss each of the changes here. While I believe further revision would be good, I support all of these changes, and I support passage of the bill even as-is.

In the first whereas statement, concerns raised about recent incidents with SPD’s acquisition of drones and with their installation of surveillance cameras on the waterfront was expanded to also reference cameras installed downtown.

In the second whereas statement, in addition to the weighing of benefits of surveillance equipment against its potential downsides, the bill now expresses the desire to balance those benefits with the need to protect privacy, anonymity, free speech, association, and equal protection. It’s great to see City Council formally acknowledge the need to protect privacy and anonymity.

The definition of “surveillance equipment” is broadened by altering “capable of capturing and recording data” to “capable of capturing or recording data.” Additionally, “Airborne vehicles” is changed to “unmanned aircraft.”

In the section describing information that must be included in proposed operational protocols provided to City Council before deployment or installation surveillance equipment (SMC 14.18.20), paragraph ‘D’, a requirement for disclosure of “whether the equipment will be installed permanently or temporarily” is added.

The following paragraph, ‘E’, was altered to add a requirement to provide description of the privacy and anonymity rights affected, and to stipulate that proposed operational protocols must include not only a description of privacy protections and limitations of risk of potential abuse of surveillance equipment, but also a plan for mitigation of such.

The paragraph about public outreach was replaced. Instead of a description of the nature and extent of outreach performed, the bill now requires (in paragraph ‘H’) plans for public outreach for each community in which the surveillance equipment is intended to be used, including opportunity for public meetings, opportunity for comment periods, and written agency responses to public comments.

Two new paragraphs are added, requiring disclosure of whether a department intends to share access to surveillance equipment and data collected with other government entities and a description of training to be provided to operators or users of the equipment.

The last four paragraphs of the bill are now designated as SMC 14.18.40. One of them is new, making exemption for surveillance equipment other than cameras on unmanned aircraft “that will be installed or used on a temporary basis for the purpose of a criminal investigation pursuant to a lawfully issued search warrant, or under exigent circumstances as defined in case law.”

A unified diff of the bill versions I compared follows:

--- cb_1177370_previous	2013-03-13 18:35:58.417704565 -0700
+++ cb_1177370_v10	2013-03-13 18:41:10.063396322 -0700
@@ -8,13 +8,14 @@
 and establishing a new Chapter 14.18 in the Seattle Municipal Code.
 
 WHEREAS, recent incidents involving the City's acquisition of drones and
-the installation of video cameras along Seattle's waterfront
+the installation of video cameras along Seattle's waterfront and downtown 
 have raised concerns over privacy and the lack of public process leading up to
 the decisions to use certain surveillance equipment; and
 
 WHEREAS, while surveillance equipment may help promote public safety in
 some contexts, such as red light cameras, the benefits of such
-technologies should be 
+technologies should be balanced with the need to protect privacy and
+anonymity, free speech and association, and equal protection;
 weighed against the potential downsides, including impacts on privacy; and
 
 WHEREAS, while the courts have established that people generally do not
@@ -57,13 +58,13 @@
 comprising operational protocols includes, at a minimum, the information
 required in Section 14.18.20.
 
-"Surveillance equipment" means equipment capable of capturing and
+"Surveillance equipment" means equipment capable of capturing or
 recording data, including images, videos, photographs or audio operated
 by or at the direction of a City department that may deliberately or
 inadvertently capture activities of individuals on public or private
 property, regardless of whether "masking" or other technology might be
 used to obscure or prevent the equipment from capturing certain views.
-"Surveillance equipment" includes drones or airborne vehicles and any
+"Surveillance equipment" includes drones or unmanned aircraft and any
 attached equipment used to collect data. "Surveillance equipment" does
 not include a handheld or body-worn device, a camera installed in or on
 a police vehicle, a camera installed in or on any vehicle or along a
@@ -97,10 +98,13 @@
 
 #. How and when a department proposes to use the surveillance equipment,
 such as whether the equipment will be operated continuously or used only
-under specific circumstances.
+under specific circumstances, and whether the equipment will be
+installed permanently or temporarily
 
-#. How the department's use of the equipment will be regulated to
-protect privacy and limit the risk of potential abuse.
+#. A description of the privacy and anonymity rights affected and a
+mitigation plan describing
+how the department's use of the equipment will be regulated to
+protect privacy, anonymity, and limit the risk of potential abuse.
 
 #. A description of how and when data will be collected and retained and
 who will have access to any data captured by the surveillance equipment.
@@ -109,9 +113,10 @@
 is being captured and the extent to which monitoring of historically
 recorded information will occur.
 
-#. A description of the nature and extent of public outreach conducted
-in each community in which the department intends to use the
-surveillance equipment.
+#. A public outreach plan for each community in which the department
+intends to use the surveillance equipment that includes opportunity for
+public meetings, a public comment period, and written agency response to
+these comments.
 
 #. If a department is requesting to acquire or use drones or other
 unmanned aircraft, it shall propose the specific circumstances under
@@ -126,6 +131,12 @@
 and city personnel, these responsibilities and associated departments
 and personnel shall be clearly identified.
 
+#. Whether a department intends to share access to the surveillance
+equipment or the collected data with any other government entity.
+
+#. A description of the training to be provided to operators or users of
+the surveillance equipment.
+
 Upon review of the information required under this Section 14.18.20, and
 any other information deemed relevant by the City Council, the City
 Council may approve the acquisition and operation of surveillance
@@ -171,6 +182,17 @@
 compliance with Section 14.18.30 and when and how compliance audits will
 be conducted.
 
+SMC 14.18.40 Acquisition and Use of Surveillance Equipment Related to
+Law Enforcement Investigations
+
+Notwithstanding the provisions of this Chapter, City departments may
+acquire or use surveillance equipment that will be installed or used on
+a temporary basis for the purpose of a criminal investigation pursuant
+to a lawfully issued search warrant, or under exigent circumstances as
+defined in case law. This exemption from the provisions of this
+ordinance does not apply to surveillance cameras mounted on drones or
+other unmanned aircraft.
+
 Section 2. Unless Council previously approved operational protocols by
 ordinance for department surveillance equipment, each City department
 operating surveillance equipment prior to the effective date of this